German defence counsel imprisoned for contempt of court

Via Simon’s Blawg
and in jurtext.de (3rd June), netbib and delta-c.

On 20 May 2003, the presiding judge of a court in Hagen had the defence counsel put into prison for contempt of court. I’ll summarize the story here, as it is told in a report by the North-Rhine-Westphalia association of criminal defense lawyers.Dr. Nobis (N) is a defence lawyer (with the extra qualification Fachanwalt für Strafrecht).
Herr Kleeschulte (K) is the presiding judge in a court sitting with one professional and two lay judges, dealing with the more serious of the minor offences at the lowest level of court (Amtsgericht).

Before the trial, the defendant (D) was in custody. Now we are in the trial and K is giving the reasons for the decision.

K: Before the trial, I was about to release D, but I was stopped by the wording (Diktion) of the appeal against the remand in custody – N was trying to give orders to the court. So I immediately stopped all the preparations that had been made and D stayed in custody.

[But if there was no cause for keeping D in custody, K had no right to do so]

N requested this statement to be recorded.

K refused.

N applied for there to be a record of the fact that N was given no opportunity to make an application (for recording).

K refused the application.

N again made an application and tried to explain why.

K became aggressive and ordered N to leave the courtroom, saying if he did not leave he would have him removed by the bailiffs (Sitzungspolizei).

N: I merely want to exercise my rights as counsel. Under section 177 and 178 of the Act on the Constitution of the Courts (Gerichtsverfassungsgesetz), these measures can’t be used against defence counsel.

N was eventually imprisoned despite offering to leave of his own free will. The whole discussion from the request for the statement to be recorded lasted less than two minutes.

Fifteen to thirty minutes later, N was again brought to court to state his opinion on the events. The public prosectuor also pleaded for N not to be locked up and said this was not lawful.

The court then retired to deliberate (as commented in law blog, the two lay judges could have overruled the professional judge but clearly didn’t – they sit with the same professional judge over a two-year period, and it is sometimes suggested they may become influenced by him or her) and on its return ordered one day’s confinement for contempt of court (Ordnungshaft). N was immediately imprisoned.

He spent 3 hours in prison, before he was released – the lawyer Christof Püschel from Cologne obtained an emergency order from the appeal court (Oberlandesgericht).

As for N’s client: in Germany, both prosecution and defence finish their closing speeches with a suggestion as to the sentence (if any) they recommend. Here N, for the defence, suggested a one-year prison sentence suspended on probation, the public prosecutor suggested two years on probation, and the court awarded three years (no probation).

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